New England Loan & Trust Co. v. Young

ItoTHBOCK, J. The cause was submitted to the •court below upon an agreed statement of facts. It involves less than one hundred dollars, and the certificate of the trial judge, which is the basis of the appeal, shows the following facts in substance : ' In June, 1886, •one W. K. Syp executed to the plaintiff a mortgage upon certain real estate to secure the payment of ten thousand dollars and interest. Syp failed to pay the interest which became due January 1, 1887, and, at the March term, 1887, of the district court, plaintiff [736] recovered a judgment against Syp for theoverdtíe interest, and a decree of foreclosure of tlie mortgage, subject to the rights of plaintiff’s assignee, for the remainder of said indebtedness. The premises were sold at foreclosure sale on the twenty-third day of April, 1887, the plaintiff being the purchaser at the sale, and a certificate of purchase was issued to the plaintiff. On the tenth day of February, 1888, Syp conveyed his right of redemption to said premises. The deed contained the following recitals : “ The grantors herein are tobe released from personal liability for the payment of the mortgage upon the said premises for the sum of ten thousand dollars .to the grantee herein, dated June 22, 1886. We hereby covenant with the said New England Loan & Trust Company that we have not heretofore conveyed our interest in the said premises to anyone. The object of this deed is to make more effectual the lien of said company against the said premises by virtue of the sheriff’s certificate of sale which they hold against the same.” Taxes to the amount of seventy-five dollars upon the personal property of Syp were levied for the year 1887, and were entered upon the tax books against said real estate. The question to be determined is, do the taxes for 1887 upon the personal property of Syp constitute a lien upon the land, which may be enforced by tax sale, and, if so, is such lien superior or inferior to plaintiff ’s lien under said foreclosure decree and sale? The district court held that the taxes were a valid lien upon the land superior to any lien or claim of the plaintiff. If the taxes had become a lien prior to the foreclosure and sale, there can be no question that they would be prior and superior to the mortgage lien. It is a general principle that when taxes are made a lien upon real estate they are prior and superior to all mortgage or judgment liens. A mortgagee of real estate would not cut much of a figure in attempting to defeat a tax sale of the land upon the grounds that his mortgage was a lien prior to the taxes, and that his lien [737] exceeded the valne of the land. Bub plaintiff contends that, as this tax did not become a lien until after the sale on foreclosure, Syp had nothing to sell but his right of redemption, and that as he was not then the owner of the land the taxes are not a lien as against plaintiff. It will be observed that the taxes became alien after the sale and during the period allowed by law for redemption. We are unable to see that this affects the rights of the parties. The mortgagor was not divested of the property by the foreclosure sale ; he-held the title, and the right of possession remained in him until the period of redemption expired. He was the owner of the land within the meaning of section 865 of the Gode, which, by its express provision, makes-the personal tax a lien upon the premises. The fact that he conveyed the land to the plaintiff after the tax became a lien cannot affect the question. Plaintiff could not defeat the lien for taxes under any form of conveyance taken from Syp. We think the court did not err in finding that the taxes were a lien upon the land. Affirmed.